In recent years, diplomatic protection and the protection of human rights have intersected more and more frequently, however these concepts, stem from different epochs of international law: The right to diplomatic protection was developed under the traditional, state-centred period
of international law, which has a bearing on the concept of diplomatic protection. According to the PCIJ's well-known Mavrommatis formula, by resorting to diplomatic action 'a State is in reality asserting its own rights – its right to ensure, in the person of its subjects, respect for
the rules of international law'. During the drafting of the 2006 ILC Draft Articles on Diplomatic Protection, the fictional character of this traditional concept was criticised. This did not however result, in a clear-cut reconceptualization, and any further development has been left open.
Human rights, by contrast only became an issue at the international level after the Second World War. Unlike diplomatic protection, there is no need for a fiction, as the individual himself or herself is the holder of right under international law. Upon closer scrutiny, it becomes clear that
international human rights treaties have a two-layered structure: over and above creating rights for the individual, they also create obligations between the contracting States parties. Furthermore, human rights have a rationale entirely different from diplomatic protection in that they are
not dependent on nationality. Yet these conceptual differences, do not preclude the assertion of human rights obligations by means of diplomatic protection, an example being the Diallo case before the ICJ. Similarly, the ECtHR in Cyprus v. Turkey underlined that there are similarities between
the State complaint procedure and diplomatic protection. This leads to the question of the legal consequences arising out of diplomatic protection. Under the traditional concept, a State receives compensation in the exercise of diplomatic protection in response to a violation of that State's
own right. Consequently, there is no legal obligation, at international law, to transfer the sum of money to the individual. This article argues where human rights are asserted by means of diplomatic protection, this should be different. The argument is that the ultimate beneficiary of human
rights is the individual. For reasons of dogmatic consistency, this characterisation of the primary rule must also prevail at the secondary rule. The ICJ judgment in the Diallo case and the ECtHR judgment in Cyprus v. Turkey lend further arguments in support.

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Language: German

Document Type: Research Article

Publication date: 01 September 2017

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Archiv des Völkerrechts (Archive of Public International Law - AVR) has been founded as a quarterly journal in 1948. With its scientific papers, reports and book reviews, the journal covers the full spectrum of developments in public international law.